In our work, we spend a lot of time arguing for people’s rights. The right to be free from targeted advertising by the tobacco industry. The right to access cessation products. The right to be free from second hand smoke. The right to be free of addiction. We are also often asked about a right that is not really a right; an individual’s right to smoke.

Smoking is not a fundamental right recognized in the U.S Constitution. In 2012, the Eighth Circuit Court of appeals, a federal court, confirmed this when they upheld a lower court ruling against a smoker (Gallagher) who challenged an anti-smoking ordinance in Missouri, arguing that the ordinance violated his constitutional rights. The panel of judges specifically stated that they “…decline Gallagher’s invitation to declare smoking a fundamental right.”

Not only is smoking not a Constitutional right, but courts around the world are denying the “right to smoke” the status of a human right as well. In an English case, R. (on the application of N) v Secretary of State for Health, the appellants, the residents of a high security hospital, argued that the smoking restrictions were incompatible with the right to respect for home and private life under article 8(1) of the European Convention on Human Rights (ECHR), an article which is often used as the basis for autonomy-driven human rights arguments. Their request, however, was denied on the basis that privacy rights are limited in what they can protect. Smoking was regarded as beyond these limits.

Interestingly, a case in New Zealand also determined that a no-smoking policy did not infringe on human rights. The case, B v Waitemata District Health Board, cited the English Court of Appeal decision (above), and held that if there was any limitation on human rights and freedoms, it was said to be of the type that could be demonstrably justified in a free and democratic society. Read more here>

Not surprisingly, one group does adamantly believe in the right to smoke; the tobacco industry.

In 1992, an actor promoting RJ Reynolds products asked a tobacco executive why that executive doesn’t smoke. The response? “We don’t smoke that shit. We just sell it. We just reserve the right to smoke for the young, the poor, the black and the stupid.”

The industry is clearly only defending smoking as a “right” in order to keep their customers addicted. Isn’t it time we stopped allowing them to use this rhetoric? Learn more about tobacco and its impact on real human rights on ASH’s Human Rights webpage.